An International Guide to
Patent Case Management for Judges

13.3.5 Enforcement

13.3.5.1 Provisional enforcement and its suspension

Article 514 of the CCP currently provides that first instance decisions may be enforced provisionally, unless otherwise provided for by law or in the decision.

The absence of provisional enforcement is therefore the exception.

Article 514-1 of the CCP also provides that the judge may not set aside provisional enforcement "when the judge rules in summary proceedings, orders provisional measures for the duration of the proceedings, orders protective measures or grants an advance to the creditor in the capacity as pre-trial judge."

In the event of an appeal, the first president of the court of appeal may suspend the provisional enforcement of the decision. Thereafter, its rulings in summary proceedings are not subject to appeal (Article 514-6 of the CCP).

According to Article 514-3 of the CCP, two cumulative conditions must be met:

• First, there must be a serious ground for annulling or reversing the judgment under appeal.

• Second, there must be a risk of clearly excessive consequences for the losing party at first instance. The decision on clearly excessive consequences is made in concreto.

Paragraph 2 of this article adds that "an application [by a party who appeared] at first instance without commenting on provisional enforcement is admissible only if, in addition to the existence of a serious ground for annulment or reversal, provisional enforcement is likely to entail clearly excessive consequences which became apparent after the decision at first instance." To obtain the suspension of provisional enforcement, the unsuccessful party must therefore normally have submitted its observations on provisional enforcement at first instance. Failing this, it may be subject to an admissibility ruling.

Court interim orders, on the other hand, are automatically subject to provisional enforcement.

13.3.5.2 Enforcement methods

To shorten the appeal period and ultimately obtain enforcement of a decision, the winning party must serve the decision. This service is performed by a judicial officer (formerly known as a bailiff). The process can be remarkably expeditious in cases where the losing party is domiciled in France. In cases where the losing party is abroad, the judicial officer will implement the procedures outlined in Regulation (EU) No. 2020/1784,¹⁶¹ where service is to be effected in another member state of the European Union, or other applicable international conventions, such as the Hague Service Convention.¹⁶²

Meetings between lawyers must always occur beforehand.

Once the decision has been rendered, the winning party may, if necessary, initiate enforcement proceedings if the opposing party does not comply voluntarily. Failure by the appellant to comply may also result in the dismissal of any appeal or further appeal that may have been lodged or brought against the enforceable decision.

The party proceeding with the enforcement of a provisional decision does so at its own risk (Article L. 111-10 of the Code of Civil Enforcement Procedures).

13.3.5.3 Penalty

To ensure the effectiveness of prohibitions, recalls or destruction, a penalty payment is often imposed (Article L. 131-1 of the Code of Civil Enforcement Procedures). This is a sum that the losing party must pay to the patent holder in the event of non-compliance. The amount is established on the basis of the length of the delay in implementation (an amount is due for each day of delay) or on the basis of the extent of the non-compliance (an amount is due for each breach of the obligation, for example, for each product sold despite the prohibition). The amount is determined based on the financial capacity of the debtor, serving as a deterrent.

The penalty payment is a corollary relief intended to ensure the enforcement of a judgment.¹⁶³ Its role is strictly punitive, i.e., to constitute a sufficiently serious threat to encourage the debtor to comply voluntarily. Conversely, the penalty payment is not intended to compensate for losses and therefore is not related to damages (Article L. 131-2).

In the event of non-compliance, the creditor may request payment of the penalty. The judge will then determine the amount to be paid by the debtor by applying the sums provided for to the duration or extent of the non-compliance. This calculation will take into account the conduct of the person to whom the injunction was addressed and the difficulties they encountered in complying with it, where applicable (Article L. 131-4). The total amount must remain proportionate to ensure compliance with the law. For this reason, the decision initially setting the penalty also sets a ceiling, in principle, on the duration of the penalty or its amount.

Where the defendant fails to comply with the imposed measures, the plaintiff is responsible for referring the matter to the relevant court for a decision on the payment of the penalty in their favor. The judge who orders the penalty payment is the judge with territorial jurisdiction for its enforcement, unless the court that issued the decision itself rules on the amount to be paid, which is frequently the case.

Disagreement may then arise regarding the amount of the penalty and the terms of payment. The judge must now apply a proportionality test to the debtor's property rights when deciding the amount to be paid. Without mitigating the punitive nature of the penalty, the aim of which is to ensure enforcement of the court's decision, this test allows for a reduction in the amount payable where it is deemed disproportionate to the nature of the infringement.¹⁶⁴

Once the decision regarding the penalty payment has been made, the losing party shall pay the amount of the penalty to the winning party.